CIV/A/7/79 IN THE HIGH COURT OF LESOTHO In the Appeal of : EDINGTON K. KOMA Appellant v JOSEPH TSAKATSI Respondent JUDGMENT Delivered by the Hon. Mr. Justice I. Isaacs on the 50th day of April, 1981. This appeal from a judgment of the Judicial Commissioner was dismissed by me with costs to the respondent except that I amended the judgment of the Local Court to delete the alternative award of R600 at R100 per head. I indicated that I would file written reasons later, the following are my reasons. The appellant (who I shall refer to as the defendant) was sued in the Mapholaneng Local Court by the respondent (who I shall refer to as the plaintiff) for 6 head of cattle being compensation for impregnation of Plaintiff's daughter by defendant's son. Plaintiff stated in evidence at the Local Court that after his daughter reported to him, he had sent a message to the defendant as a result of which plaintiff came to him with his son Kabelo. He alleged that Kabelo accepted what he had told him but denied that he was responsible for the impregnation. This was in the presence of the chief and other people on the 27th May, 1976. He said his daughter mentioned that she had had sexual intercourse with defendant's /2.
-2- son in September, 1975 and it was then she had conceived. He said his daughter alleged that they had intercourse several times. He said that Kabelo said in front of all the people gathered, that he had unbuttoned his trousers in an attempt to have sex but had failed. He had admitted that he had indecently assaulted the girl but that on all occasions he failed to have sexual intercourse, plaintiff alleged further that the boy said that he was surprised to find that the girl had a baby because she had written to inform him that she had been to Bloemfontem to procure an abortion. He said that the defendant objected when plaintiff requested that the letters be read as defendant said there was no need because the boy and the girl agreed. Defendant said that he would report back to the Koma family. On the 3rd or 4th June, 1976 he received messengers from the plaintiff in effect repudiating liability. In cross-examination by the defendant, plaintiff said his daughter had said she had gone to Butha- Buthe to dissuade her boy friend to proceed with their engagement. Plaintiff also said that defendant's son had instructed her to cease going to Butha-Buthe, In answer to the Court he said his daughter had said they had sexual intercourse for the first time in September and he marked the date 26th September, 1975. He did not remember other dates. He said the impregnation took place at Maseru where his daughter was working while defendant's son was attending High School. He put in as exhibits letters written by the boy. Bonang Tsakatsi witness No.1 for the plaintiff said she was employed at Income Tax in Maseru. She said she and Kabelo agreed to have sexual intercourse. They were very much in love. She said they had intercourse in September, 1975 and it resulted in the birth of a child. She said /3.
-3- Kabelo and defendant visited her home and Kabelo admitted before plaintiff and respondent that they did have sexual intercourse which resulted in the birth of the child. She said that after having sex several times she told Kabelo and also wrote to him that she was missing her menses. She said Kabelo came to her and asked her to marry him and he gave her his photo (an exhibit in the Court) She said that on the day they were confronted she met him privately and asked him why "he scandilised me so much by saying that I had gone to Bloemfontem to perform an abortion." He said he did not want to disappoint his parents by readily agreeing he was responsible. In cross-examination she said she had admitted before defendant that she had a boy friend in Butha-Buthe. She said that his son had jilted her because she went to Butha-Buthe. She still wanted to marry him despite her pregnancy. She said the day they gathered at her home Kabelo had admitted that they had sex in Maseru. She said she was in love with Kabelo when she went to Butha-Buthe to tell her boyfriend that she loved him no more and to explain to him she was already pregnant by Kabelo. She said they agreed in all respects with the boy at the meeting. Witness No. 2 for the plaintiff was one William Mpiti. He said that plaintiff has sent him to deliver a letter to defendant notifying him that his son had impregnated plaintiff's daughter. He was present when defendant called on plaintiff. He alleged Kabelo said that he had sex with plaintiff's daughter with the purpose of impregnating her. The boy had said he unbuttoned his trousers, and that he did not love the girl anymore for continuing to go to Butha-Buthe to visit her boyfriend. He said the girl wrote to say that she had gone /4.
-4- to Bloemfontein for an abortion. The witness said that defendant objected to letters being read because as he said the boy and girl agreed. The witness also said that after the meeting he had seen Kabelo and Bonang standing behind a car. In cross-examination he said Kabelo had said that the child was not by him. He said that Kabelo had said that it was possible to sleep together but not succeed in having sex. He said the girl said they had sex but the boy said he failed to have intercourse. Witness No.3 was plaintiff's chief Helanthibe Sekonyela. He said that defendant's son admits that he impregnated her daughter, and that Kabelo said he remained in his underpants only, this witness also said that defendant had said there was no need for the letters to be read because the boy and girl had agreed. The witness also saw the boy and the girl standing next to the car talking. In cross-examination the witness said that the boy had said he had had sex with the girl and agreed to everything the girl had said. Plaintiff witness No.4 was 'Maleoto Tsakatsi the sister of Bonang who gave evidence that Bonang had told her she had been pregnant by Kabelo and they proposed to marry, she had occassionally saw Kabelo at that place. Kabelo had once told her that he was inlove with Bonang and that he wanted to marry her. The last visit by him was in "October, 1975, Defendant in his evidence denied liability. He said that when the children were confronted the girl already had a baby and that she had admitted informing her boy friend at Butha-Buthe about the impregnation. He said that on the day of the confrontation the girl admitted openly that she never had sex with defendant's son and that plaintiff had angrilly asked her what she meant and she replied that /5.
-5- she would rather say Kabelo was responsible because she was in love with him and the boy at Butha-Buthe. He said that the plaintiff's witness No.2 William said this was "cross- polination." He gave an example of white and yellow mealie seeds sown and adjacent field. These examples were given when the girl flatly denied having had sex with the boy. Defendant said that he did not deny the love affair between the boy and girl but denied the impregnation. Kabelo was witness No.1 for the defendant. He said he was in love with Bonang and their intention was to marry. He said he was discouraged by the girls' behaviour. She stated stealing away to her boy friend in Butha-Buthe and he said he decided to part from her. He denied visiting her at night from Matsieng. In regard to the confrontation meeting he said "Bonang said I had impregnated her but that truly speaking she did not to slander me and said that we never had sex. She said that I had impregnated her because we were very much in love. He admitted writing the letters. In cross-examination he said " I cannot say who impregnated Bonang." The defendant's witness No.2 was one Tau Koma. He gave evidence of the meeting between the parties. He said plaintiff asked his daughter to explain who had impregnated her, she said she had been impregnated by Kabelo even though she could not explain how because they never had sexual intercourse. In cross-examination he said defendant was his brother. The defendant's witness No.3 was one 'Molaoa Matla who said that he had been delegated by the chief of Thabang to accompany the defendant to plaintiff's. He said that plaintiff's daughter said that she had been impregnated by the respondent's /6.
-6- son even though they never had sexual relations. The Local Court gave judgment in favour of plaintiff. The President of the Court referred to the evidence and particularly the letters written by defendant's son. He said "I have thoroughly examined the evidence adduced by both sides and I strongly believe that impregnation has been committed and that Kabelo is responsible." Defendant appealed to the Salang Central Court which upheld his appeal. In his judgment the President of the Central Court said, inter alia, "From evidence adduced in the trial Court there has not been any testimony as to seeing or knowing that Bonang had sex with Kabelo It is only by conduct that an inference may be drawn to the possibility that sexual intercourse has been performed The fact 'Maleoto in her evidence said Kabelo was often seen with Bonang in the evenings and that Bonang used to accompany him half-way is not sufficient to make this Court believe that sexual intercourse took place This witness has not testify that the boy and girl were seen together on evenings of 13, 21 and 26. 9. 75 which dates the girl says they had sexual intercourse...." The plaintiff appealed to the Judicial Commissioner which upheld the appeal. The Judicial Commissioner in his judgment said inter alia. What I think I should mention is that even in Lesotho we require corroboration in sexual cases. After considering the letters and other evidence he said. "In any event it seems to me that the trial Court believed that there was no strong denial of the allegations against the boy." In my opinion the Judicial Commissioner was correct in /7.
-7- his approach. The trial Court heard and saw the witnesses and came to the conclusion that Kabelo was responsible for the impregnation and I do see anything to show that it misdirected itself in any way. In seduction cases it is a well known principle of law that the evidence of the girl alleged to be seduced requires corroboration. Such corroboration must be some evidence which is consistent with her story and is inconsistent with the innocence of the defendant (in this case defendant's son) (g.p. Mackay v. Ballot 1921 TPD. 430). In the present case there is the admission of Kabelo that he and Bonang were lovers. Whatever Kabelo said at the confrontation meeting I cannot see anything in his evidence in the Local Court denying intercourse. Although his letters do not speak of intercourse specifically. I think the Local Court was justified in its interpretation of them. I have considered the evidence that Bonang denied sexual intercourse at the confrontation meeting but her evidence in Court was specific. I cannot see anything in the record of her cross-examination by the defendant that it was put to her that she had denied at the confrontation meeting having sex with Kabelo. There is merely a reference to cross polination about which she said she did not remember the talk. The evidence as a whole in my view justified the Local Court and the Judicial Commissioner in coming to the conclusion they did. I think that the Central Court did not take into account all the evidence which amounted to corroboration. I therefore dismissed the appeal with costs to be paid by appellant, but I amended the judgment. The claim by the plaintiff in this case was for 6 head of cattle. He did not claim money in the alternative. Counsel for the /8.
-8- respondent in this Court contended that it was usual for Local Courts to put a money value on cattle as an alternative to delivery. If so, in my opinion, there should be evidence of the market value of cattle at the date of judgment. There was no such evidence here. Moreover it seems to me that the values of all head of cattle cannot be the same. I therefore amended the Judgment by deleting the order for R600 in the alternative. ACTING JUDGE 30th day of April, 1981. For Appellant -Mr. K. Sello For Respondent-Mr. M.M. Ramodibeli.
